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State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.

N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

January 30, 2021

Audits and reports issued by the New York State Comptroller during the week ending January 29, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending January 29, 2021.

Click on the text highlighted in color to access the complete audit report.

SCHOOL DISTRICT AUDITS

New York State Comptroller Thomas P. DiNapoli today announced the following school district audits were issued.

Clyde-Savannah Central School District – Network Access Controls (Seneca County and Wayne County) District officials did not ensure that the district’s network access controls were secure. Officials did not regularly review network user accounts and permissions to determine whether they were appropriate or needed to be disabled. Sensitive information technology (IT) control weaknesses were communicated confidentially to officials. Protecting IT assets becomes more critical as the district moves to increased reliance on a remote learning environment and administrative operations due to the COVID-19 pandemic.

Van Hornesville-Owen J. Young Central School District – Financial Management (Herkimer County and Otsego County) The board and district officials did not effectively manage financial condition. The practice of over-estimating appropriations each year and annually appropriating fund balance that was not needed to finance operations contributed to the district maintaining a surplus fund balance that exceeded the statutory limit by $1.5 million and resulted in higher tax levies than necessary.

Fiscal Stress Monitoring System Report

Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System indicates that 31 school districts are susceptible to some level of fiscal stress for the school year ending on June 30, 2020. DiNapoli said “This is a time of unprecedented uncertainty as the COVID-19 pandemic continues to disrupt school district operations and finances” and urged school district leaders to closely monitor their financial conditions, "even if their fiscal stress scores were low in the early days of the crisis.”

Click HERE to access the Comptroller's report.

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

January 29, 2021

CPLR Article 78 petition dismissed as untimely, barred by the Doctrine of Res Judicata and barred by the Doctrine of Collateral Estoppel

Supreme Court rejected the CPLR Article 78 action filed by the Petitioner [Plaintiff] again seeking a court order annulling the decision of the New York City Department of Education [DOE] terminating Petitioner's employment.

Plaintiff had challenged her being appointed as a probationary employee by DOE upon her reinstatement to a position with the agency in 2009 after she had been terminated from her from her position in 2010. Plaintiff contending that she had attained tenure by estoppel* and thus could be removed from her position only after "notice and hearing" pursuant to the controlling disciplinary procedure and being found guilty of one or more of charges filed against her.

Supreme Court, considering a number of procedural issues, held that Plaintiff's instant Article 78 petition was [1] untimely, [2] barred by the Doctrine of Res Judicata and [3] barred by the Doctrine of Collateral Estoppel, dismissed the proceeding. 

As to the basis underlying the Supreme Court's rulings on these procedural matters:

1. The commencement of an action at law is deemed "untimely" if the required petition or similar instrument is not filed with the judicial or quasi-judicial tribunal having jurisdiction within the period of time specified by the relevant law, rule or regulation or, in some instances, the terms of a collective bargaining agreement negotiated pursuant to Article 14 of the New York State Civil Service Law, the so-called "Taylor Law";

2. The Doctrine of Res Judicata bars considering claims that could have been advanced in an earlier judicial or quasi-judicial proceeding in the course of a subsequent litigation; and

3. The Doctrine of Collateral Estoppel provides that when an issue of fact has once been determined by a judicial or quasi-judicial body of competent jurisdiction the determination is conclusive as to the controverted issues and cannot again be litigated by the same parties in any future litigation.

Plaintiff appealed the Supreme Court's ruling. The Appellate Division, however,  unanimously affirmed the Supreme Court's decision, explaining:

a. Plaintiff's challenge with respect to her probationary status upon reinstatement by DOE in 2009 and the discontinuance of her employment under color of her being a "probationary employee" in 2010 was untimely and to the extent Plaintiff submitted a renewed challenge against DOE in 2015 concerning such action by DOE, it was similarly barred; and

b. Supreme Court correctly determined that the instant proceeding was barred by res judicata and collateral estoppel as Plaintiff had asserted claims arising from her reinstatement and subsequent discontinuance from her position by DOE in actions that raised the same issue with respect to her allegation that she had attained "tenure by estoppel" in two actions she had brought in federal court, one in 2011 and a second in 2013, and another such action she brought in state court in 2015. 

* * Tenure by estoppel, also referred to as tenure by acquisition, tenure by default, or tenure by inaction, results "by operation of law" in the event the appointing authority does not lawfully terminate the probationary employee on or before the last day of the individual's original, or extended, probationary period.

Click HERE to access the Appellate Division's ruling.

 

January 28, 2021

New York State Department of Environmental Conservation's operational spending declines as responsibilities grow according to a report issued by the State's Comptroller

Over the last decade new laws have expanded the New York State Department of Environmental Conservation’s mission to address the urgent threat of climate change and other pressing issues. Spending to support the Department’s operations, however, have declined by 10 percent according to a report released on January 28, 2021 by New York State Comptroller Thomas P. DiNapoli.

The Comptroller stated that “The Department of Environmental Conservation is leading major initiatives to attack climate change and has been entrusted with many new duties.” In the words of the Comptroller, “The expansion of DEC’s mission, combined with the state’s severe fiscal challenges, raises the question of whether the agency has the staff and funding it needs to carry out its critically important work.”  

Click HERE to access the text of the Comptroller's report.

An unblemished personnel record considered in determining the disciplinary penalty to be imposed

A New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] recommended a 55-day suspension of a New York Correction Officer [Officer] after finding him guilty of disciplinary charges that alleged that he used impermissible and unnecessary force against an inmate and submitting a false report about the incident.

ALJ Kevin F. Casey found that Correction Officer had entered a holding cell, put his hands around an inmate’s neck, elbowed the inmate in the head, and then held the inmate’s face to the floor based on testimony provided by testimony from an investigator and supported by a surveillance video and documentary evidence.

Judge Casey also found that Officer had filed a false report by omitting details describing  the force used by his fellow officers.

Taking into consideration Officer’s unblemished personnel record prior to the disciplinary action initiated in response to the instant situation as a mitigating consideration in determining to be imposed, ALJ Casey recommended that the appointing authority impose a penalty of a 55 days’ suspension without pay rather than a harsher penalty.

Click HERE to access the complete text of the ALJ's decision.

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A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on http://booklocker.com/books/7401.html

_________________

 


January 27, 2021

Offensive statements made by an employee concerning personal matters are not protected speech within the meaning of the First Amendment

A Job Opportunity Specialist [Specialist] employed by a New York City Department [Agency] was served with disciplinary charges* alleging that he made "discourteous and threatening statements towards staff members both at the workplace and on social media."

After Specialist's stated “I’m going to shoot up this place” he was placed on pre-trial suspension without pay for 30 days. Specialist, however, continued to post  statements targeting an administrative superior and his co-workers on his non-private personal Instagram account that were deemed discourteous by the Agency . In addition, the Agency alleged that these statements included racial epithets.

New York City Office of Administrative Trials and Hearings Administrative Law Judge Noel R. Garcia ruled that the offending statements were not protected speech within the meaning of the First Amendment as they were not expressed by Specialist "acting in the role of a private citizen regarding a matter of public concern." 

In the words of the ALJ, "Here, the four discourteous statements made on [Specialist's] Instagram videos related to his personal grievances with his supervisor and co-workers, and not to matters of public concern. Accordingly, such statements are not protected speech."

In addition, the ALJ found that Specialist did not take any responsibility for his actions or express any regret.

Judge Garcia recommended the termination of Specialist's employment in consideration of the fact that Specialist had a significant prior disciplinary record.

* The decision notes that the Agency alleged that Specialist also violated other provisions of the Agency's Code of Conduct, including rules prohibiting an employee from conduct detrimental to the agency, or activity that would compromise the effectiveness of an employee in the performance of the employee’s duties. The decision notes that these violations were "never specified in [the Agency's charges] or at trial how Specialist violated these rules" and were not considered by the Administrative Law Judge in arriving at his decision.

Click HERE to access the text of the ALJ's decision.

 

January 26, 2021

An appeal challenging a resolution of a board of a library truncating the term of office of a member of the board sustained by the Commissioner of Education

Following the election of a candidate [Petitioner] seeking a five-year term as a member of the board of a library [Board] the Board determined that the Petitioner “was not qualified to hold the position of [t]rustee” and certified her opponent ... as the winner of the five-year term." Petitioner challenged the Board's action in an appeal to the Commissioner of Education pursuant to Education Law §310.

Interim Commissioner Betty A. Rosa sustained Petitioner’s appeal and ordered, among other things, that the Board “appoint petitioner to fill the seat on the board of trustees for which she was the successful candidate in the April 2, 2019 election.”*

The Board subsequently passed a resolution [Resolution] appointing Petitioner "to the vacant [t]rustee seat" ... until the next [l]ibrary election ... at which time an election [would] be conducted for the remainder of the term for the aforesaid [t]rustee position."

Petitioner appealed the Board's action, contending:

1. The Resolution was arbitrary and capricious insofar as it appointed her to the position of trustee only until the April 2020 election; and  

2. Pursuant to the Commissioner’s order in her earlier appeal she was entitled to be appointed for the full five-year term. 

The Board, in rebuttal, argued, among other things, that Petitioner has failed to establish that the resolution was arbitrary, capricious, or in violation of law.

Initially addressing a number of procedural issues raised by the Board, the Commissioner rejected the Board's assertion that:

 [1] Petitioner’s appeal “should have been filed as an application to reopen instead of a new petition” and 

[2] Petitioner’s request that the Commissioner “clarify” the prior decision amounts to a request to reopen such decision and, therefore, this appeal is improper because {Petitioner] did not apply for reopening within 30 days of the date of the decision,"

The Commissioner said that Petitioner "does not seek to reopen the Commissioner’s Decision No. 17,785" but appeals the Board's Resolution and declined to dismiss the appeal on that basis.

As to the Board's assertion that Petitioner failed to name a necessary party - a potential candidate for election to the Board -- the Commissioner observed that "A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such."

Here, however, the Commissioner explained that an intention of a possible candidate to run for Petitioner’s seat in a future election "is inherently speculative and does not secure an actual, existing right in such seat," citing Appeal of Kennelly, 57 Ed Dept Rep, Decision No. 17,137.

Turning to the merits of Petitioner's appeal, the Commissioner held that Petitioner  had "established that [the Board's] resolution is arbitrary and capricious and that [Petitioner] is entitled to the relief requested," noting that Decision No. 17,785 "unambiguously concluded that [Petitioner] was eligible to serve on [the Board] and had been the successful candidate for a five-year term in the [relevant] election." 

Based on the plain language of that decision, the Commissioner held that there was no basis to conclude that Petitioner is entitled to anything less than the full five-year term to which she was elected. Rejecting other arguments advanced by the Board in support of its position, the Commissioner concluded that Petitioner was entitled to a five-year term on the Board ending June 30, 2024.

Referencing Education Law §226[4], the Commissioner advised the Board that "any future noncompliance with this decision or the prior decision may constitute a neglect of duty or a refusal to carry into effect the educational purposes of the [library]."

* See 59 Ed Dept Rep, Decision No. 17,785.

Click here to access the text of the Commissioner's decision.

 

January 25, 2021

Obtaining police department records concerning a traffic accident pursuant to the Freedom of Information Law

As the Court of Appeals held in Fappiano v New York City Police Dept., 95 NY2d 738, "[a]ll government records are presumptively open for public inspection unless specifically exempted from disclosure as provided in the Public Officers Law" and further explained in Gould v New York City Police Dept., 89 NY2d 267, a government agency may withhold records sought pursuant to FOIL only if it "articulate[s] particularized and specific justification for not disclosing requested documents."

In this CPLR Article 78 proceeding Supreme Court denied a petition seeking, among other things, to compel the New York City Police Department [NYPD] to disclose certain records concerning a traffic accident pursuant to the Freedom of Information Law.

NYPD had relied on the FOIL exemption from disclosure records that were compiled "for law enforcement purposes and which, if disclosed, would . . . interfere with . . . judicial proceedings," contending that disclosing the records demanded "would tip the hand of the Traffic Violations Bureau's [TVD] prosecuting attorney or prevent the prosecutor from testing the recollection of witnesses."

The Appellate Division unanimously reversed the Supreme Court's ruling "on the law."

Noting that TVB was an administrative agency that was legislatively created to adjudicate traffic violation charges for the purpose of reducing caseloads of courts in New York City, the court said that the accused motorist has a right to be represented by counsel and the administrative law judge presiding over the hearing must determine whether the police officer has established the charges by clear and convincing evidence.

Holding that NYPD failed to meet its burden of showing a particularized justification for withholding the records at issue within the meaning of the interference exemption provision of FOIL in this instance, the Appellate Division's decision noted that the recollection of witnesses and the basis of their testimony "would certainly be determined by questioning and cross examination at the hearing" and the court opined that NYPD's "blanket denial of document release fell short of meeting its admittedly low burden."

Click here to access the Appellate Division's decision.

 

January 23, 2021

Audits issued by the New York State Comptroller during the week ending January 22, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending January 22, 2021.

MUNICIPAL AUDITS

New York State Comptroller Thomas P. DiNapoli today announced the following local government audits have been issued.

Town of Delhi – Pool Project Donations and Disbursements (Delaware County)

The board did not properly manage pool project donations or disbursements. The board also inappropriately used town funds to pay at least $8,000 for fundraising activities. Auditors found the board did not properly document donations it received totaling $117,300. In addition, 77 of the pool checks were improperly disbursed. The town supervisor, as the town disbursing officer, should have signed the checks. However, the committee treasurer, a private citizen or a board member signed them.

 

Village of Little Valley – Capital Project Management (Cattaraugus County)

The board properly planned the waste water treatment plant (WWTP) project but could have better managed certain aspects of the project. Auditors determined the board developed a financial plan that addressed the impact of project debt payments. Village officials incurred $67,000 in additional expenses because they were unable to comply with certain grant funding requirements. In addition, project delays and project scope changes added an additional $220,000 to the WWTP project costs. The initial project completion date was December 2017 but was completed in October 2020.

 

SCHOOL DISTRICT AUDITS

New York State Comptroller Thomas P. DiNapoli today announced the following school district audit was issued.

East Rockaway Union Free School District – Extra-Classroom Activity Funds (Nassau County)

The extra classroom activity (ECA) clubs did not maintain adequate records. As a result, auditors could not determine whether all money collected was accounted for, properly remitted and deposited. Other than minor exceptions, disbursements were properly supported and for legitimate purposes; however, ECA deposits were not always timely. Managing the finances of ECA activities is meant to be a learning experience for student club members. By not properly managing ECA finances, students miss this learning opportunity and district officials have little assurance that ECA funds are adequately safeguarded and properly accounted for.

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest

January 22, 2021

Determining if a workers' compensation benefit claimant is eligible for a reduced earnings award

In 2008 a claimant [Appellant] for workers' compensation benefits established his eligibility for benefits as a result of a work-related injury. In September 2017, Appellant retired and claimed that his retirement was, at least in part, due to his 2008 injury. The employer contested Appellant's claim for benefits, contending that Appellant's retirement was voluntary and not causally related to his disability.

Ultimately a Workers' Compensation Law Judge [WCLJ] found that Appellant's retirement was not due to his compensable disability, but that Appellant "had reattached himself to the labor market by obtaining part-time employment in November 2018. The WCLJ directed Appellant to produce records of his wages in order to determine his possible eligibility for "a reduced earnings claim."* The employer appealed the WCLJ's ruling.

The Workers' Compensation Board [Board] modified the WCLJ's decision, finding that the record "was devoid of any credible evidence of a nexus between work-related back injury" and Appellant's alleged reduced earnings and thus he was not entitled to a reduced earnings award. 

The Board also rejected Appellant's rebuttal to the employer's appeal, in which he argued that his retirement was involuntary. The Board rejected the rebuttal on the grounds Appellant failed to file a timely appeal from the WCLJ's decision.

The Appellate Division sustained the Board's ruling, explaining:

1. A claimant who has voluntarily retired, but claims to have later "reattached to the labor market," has the burden of demonstrating "that his or her earning capacity and his or her ability to secure comparable employment has been adversely affected by his or her compensable disability";

2. The claimant may satisfy this burden by showing that the adverse effect on his or her earning capacity was not caused by factors totally unrelated to his or her disability"; and

3. The issue of whether a claimant's reduced earnings are causally related to the work-related injury "is a factual one for the Board to resolve, and its findings will not be disturbed [by the court] if supported by substantial evidence."

The Appellate Division opined that "[t]he credited evidence established that [Appellant] worked for the employer for more than nine years following his 2008  injury and that his decision to retire in 2017 "was influenced by economic factors, including a retirement incentive package offered by the employer."

Although Appellant claimed that his disability restricted the types of positions available to him after his voluntary retirement, the Appellate Division held that Appellant's claim was undermined by the fact that he was able to perform his required administrative work for many years after sustaining his work-related injury. Under the circumstances, the court found that Appellant's voluntary retirement has a "significant bearing" upon his claim to entitlement to a reduced earnings award, and ruled that there was no error in the Board's consideration of these factors.

Finding substantial evidence existed in the record to support the Board's decision, the Appellate Division held that "there is no basis upon which to disturb it."

*  In the event a claimant's post-injury wages are less that the claimant's pre-injury wages due to the claimant's workplace injury or illness, New York's workers' compensation law permits payments not to exceed two-thirds of the difference to eligible claimants.

Click here to access the full text of the Appellate Division's decision.

 

January 21, 2021

Courts apply the substantial evidence standard when considering a challenge to the penalty imposed following a disciplinary action

A police detective [Plaintiff] was terminated from his position after being found guilty of possessing and ingesting methamphetamine. The Appellate Division found that there was substantial evidence in the record supporting the finding that Petitioner possessed and ingested methamphetamine.

Noting that "[T]hree samples of hair from [Plaintiff's] [leg] were subjected to repeated testing by independent laboratories and yielded positive results," the court opined that to the extent there were conflicting expert opinions as to the efficacy of drug testing using hair, as well as character witness testimony tending to show that petitioner did not use drugs, "courts may not weigh the evidence or reject the choice made" by the hearing officer to accept or reject particular testimony.

As to the penalty imposed, dismissal from his position, the Appellate Division said it found "no grounds" to vacate the penalty as "[t]he [appointing authority's] dismissal of a police officer for using illegal drugs is not so disproportionate to the offense as to be shocking to one's sense of fairness."

Rejecting Petitioner's contention that the employer "failed to apply the preponderance of the evidence standard," the Appellate Division observed that its review "is limited to a consideration of whether [the penalty imposed] was supported by substantial evidence upon the whole record," citing 300 Gramatan Ave. Assoc., 45 NY2d at 181.

Click here to access the text of the Appellate Division's decision

 

January 20, 2021

Applying the three-step burden-shifting framework established in McDonnell Douglas Corp. followed where the plaintiff lacks direct evidence of discriminatory conduct

Under the McDonnell Douglas Corporation* three-step shifting framework used in evaluating a Title VII discrimination complaints, the plaintiff must first establish a prima facie case of discrimination, which then shifts the burden to the employer to come forward with a legitimate, nondiscriminatory reason for the adverse employment action. If the employer provides such a justification, the plaintiff must present evidence from which a reasonable jury could find that the employer’s explanation is a pretext for intentional discrimination.

In this case the U. S. Court of Appeals, Second Circuit, assuming that the Plaintiff had established a prima facie case of unlawful discrimination within the meaning of Title VII, found that the record showed that the employer "proffered legitimate reasons for the various employment actions" the Plaintiff challenged as discriminatory and that the Plaintiff failed to present sufficient evidence from which a jury could find pretext.

Citing Schnabel v. Abramson, 232 F.3d 83, the Circuit Court explained that at the third step of the McDonnell Douglas framework, the court's task is to “examin[e] the entire record,” using a case-specific approach, “to determine whether the plaintiff could satisfy his ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.” To satisfy this requirement, the plaintiff must produce enough evidence "to support a rational finding not only that the employer’s nondiscriminatory reasons were false but also 'that more likely than not discrimination was the real reason for the' employment actions."

Finding that the overall record showed that:

1. Plaintiff’s subordinates lodged repeated complaints against him over the course of several years;

2. Plaintiff was consistently combative and defiant toward his superiors; and

3. Plaintiff was unwilling to incorporate constructive feedback in response to his performance reviews over that time.

The Circuit Court opined that assuming it could be argued that Plaintiff in this action presented some evidence of pretext, "the record, taken as a whole, does not permit a reasonable trier of fact to find that 'the most likely alternative explanation' for his termination was [unlawful] discrimination."

Noting that a plaintiff is not guaranteed a trial merely because he can satisfy a prima facie case and can adduce “evidence that arguably would allow a reasonable factfinder to conclude that [the employer’s] explanation . . . is false”, in this instance Plaintiff failed to demonstrate “weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action.”

In the words of the court, "there can be no question that [the Employer] proffered legitimate, non-retaliatory reasons for disciplining and ultimately terminating [Plaintiff]" and based on the totality of the record, the Circuit Court of Appeals said it agreed with the federal district court that "a rational jury could not find that retaliation was the but-for cause of the actions taken against [Plaintiff]."

* McDonnell Douglas Corp. v. Green, 411 U.S. 792.

Click here to access the text of the decision.



 

January 19, 2021

Attendance and Leave information for officers and employees of New York State as the employer

The leave benefits available to Executive Branch State Officers and Employees in the Classified Service are contained in the Attendance Rules for Employees in New York State Departments and Institutions, attendance and leave provisions of the relevant collective bargaining agreements negotiated with State employee organizations, and related laws, rules and regulations. 

These Attendance Rules and the other attendance and leave provisions referred to above apply to officers and employees of the State of New York as the employer and, as provided by 4 NYCRR 1.1, "Except as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the New York State Civil Service Law is administered by the New York State Department of Civil Service."

N.B. Civil service commissions of political subdivisions of the State of New York and Personnel Officers appointed pursuant to New York State Civil Service Law §15.1(b) or §15.1(d) may have promulgated or adopted similar provisions applicable to public officers and employees employed in positions under their jurisdiction.

The information listed below has been posted on the Internet by the New York State Department of Civil Service. The New York State Attendance and Leave Manual is the official published description of the manner in which leave benefits are to be administered. Links to the Manual and other relevant information concerning attendance and leave issues, and calendars of legal holidays, are set out below.

Click here to access the  New York State Attendance and Leave Manual posted on the Internet. 

Memoranda of special note posted by the New York State Department of Civil Service are listed below. Click on text in color to access the particular information of interest.

Family Medical Leave Act

Military Leave Related Memoranda

 

Recent Memoranda and Bulletins posted on the Internet by the New York State Department of Civil Service.

Click on text in color to access the particular information of interest.

Policy Bulletin No. 2020-06, Implementation of the Productivity Enhancement Program for 2021

Policy Bulletin No. 2020-05, Clarification of Policy Bulletin 2020-01 and 2020-04

Policy Bulletin No. 2020-04, Clarification of Policy Bulletin 2020-01, entitled Guidance Related to Recent State and Federal Law and Policy Changes Due to COVID-19

Policy Bulletin No. 2020-03, Executive Order Recognizing Juneteenth as a Holiday for State Employees - June 19, 2020

Advisory Memorandum No. 2020-04, Designation of Floating Holidays in lieu of Election Day and Lincoln's Birthday for Contract Year 2020–2021

Advisory Memorandum No. 2020-03, Independence Day—July 4, 2020

Policy Bulletin No. 2020-02, Time Off to Vote

Policy Bulletin No. 2020-01, Guidance Related to Recent State and Federal Law and Policy Changes Due to COVID-19

Advisory Memorandum No. 2020-02, Memoranda of Understanding on Extension of Special Military Benefits and Post-Discharge Benefits through December 31, 2020

Advisory Memorandum No. 2020-01, Special Holiday Waiver Memoranda of Understanding for Security Supervisors Unit (SSpU), Security Services Unit (SSU), and Agency Police Services Unit (APSU)

Policy Bulletin No. 2019-05, Implementation of the Productivity Enhancement Program for 2020

Policy Bulletin No. 2019-04, Attendance and Leave Item - 2016-2023 State-NYSCOPBA Negotiated Agreement

Advisory Memorandum No. 2019-03, Designation of Floating Holidays in Lieu of Election Day and Lincoln's Birthday for Contract Year 2019-2020

Transmittal Memorandum No. 45, 2020 Calendar of Legal Holidays and Days of Religious Significance

Policy Bulletin No. 2019-03, Implementation of Paid Family Leave Benefits for Rent Regulation Services Unit Employees

Advisory Memorandum No. 2019-02, Special Holiday Waiver Memoranda of Understanding for Security Supervisors Unit (SSpU), Security Services Unit (SSU), and Agency Police Services Unit (APSU)

Policy Bulletin No. 2019-01, Military Leave for Combat Related Health Care Services

Advisory Memorandum No. 2019-01, Memoranda of Understanding on Extension of Special Military Benefits and Post-Discharge Benefits through December 31, 2019

Policy Bulletin No. 2018-05, Implementation of the Productivity Enhancement Program for 2019

Policy Bulletin No. 2018-04, Line of Duty Sick Leave Related to World Trade Center Conditions

Policy Bulletin No. 2018-03, Attendance and Leave Items in the 2016-2021 Negotiated Agreements Between the State of New York and CSEA for Employees in the Administrative Services Unit (ASU), Institutional Services Unit (ISU), Operational Services Unit (OSU) and the Division of Military and Naval Affairs (DMNA)

Policy Bulletin No. 2018-02, Leave for Cancer Screening

 

Information posted on the Internet by the New York State Department of Civil Service for the calendar years indicated:

2020

2019

2018

2017

2016

2015

2014

2013

2012

2011

2010

2009

2008

2007

2006

2005

2004

2003

2002

2001

2000

 

Calendars of Legal Holidays

2021

2020

2019


* Although not all employees of the State are "state officers," all officers of the State are State employees.

Questions concerning attendance and leave issues? Call (518) 457-2295.

 

January 18, 2021

Challenging a school board's approving the cost of providing for the defense and indemnification of board members and district officers in an appeal to the Commissioner of Education

The Applicant [Petitioner] in this appeal to the Commissioner of Education, among other things, challenged the school board's approval of resolutions to pay for the cost of the defense and indemnification of certain members of the school board and district officers in connection with prior appeals under Education Law §310. Interim Commissioner of Education Betty A. Rosa said the Petitioner's application must be denied and the appeal must be dismissed.

Petitioner had filed several prior appeals and applications involving various school district officers and the school board had voted to provide for the defense and the indemnification of the district officers in such prior appeals. Petitioner, in the instant appeal, contended that the school board had "improperly authorized the defense and indemnification of 'individuals who do not possess certificates of good faith', because the indemnified officers failed to notify the board of the commencement of the proceedings against them within five days as required by Education Law §3811(1)."

The Commissioner initially addressed some procedural issues and ruled:

1. The Petitioner's applications concerning the board's authorization for "defense and indemnification" in three of the four events must be dismissed as untimely* as they were not commenced "within 30 days from the making of the decision or the performance of the act complained of" by the school board and the Applicant failed to show "good cause" for the Commissioner to excuse such delay; and

2. Petitioner's application to remove certain school officers from their positions was untimely as a removal application must be commenced within 30 days of the petitioner’s good faith discovery of the misconduct alleged in the application even though the alleged misconduct occurred "more than 30 days before the application was instituted."

Turning to the merits of Petitioner’s several challenges to the school board's actions concerning providing for the defense and indemnification of district officers, the Commissioner said that a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. Further, explained the Commissioner, Education Law §3811 requires a board of education to defend and indemnify school board members, officers and employees if: 

(1) The targets of the petitioner's appeal notify the board in writing of the commencement of an action or proceeding against them within five days after service of process;

(2) The action or proceeding arises out of the exercise of their powers or the performance of their duties; and

(3) A court or the Commissioner, as the case may be, certifies that they appeared to act in good faith with respect to the exercise of their powers or the performance of their duties.

Further, said the Commissioner, Public Officers Law §18(3) provides for defense and indemnification "in any civil action or proceeding arising out of any alleged act or omission which occurred or allegedly occurred while a public employee was acting within the scope of his or her employment or duties, so long as he or she: 

(1) provides a written request for defense along with copies of the relevant pleadings within 10 days of service of such pleadings upon the employee; and 

(2) cooperates fully in his or her defense. 

Public Officers Law §18, however, contains no requirement that a public employee obtain a certificate of good faith to avail him or herself of its protections.

Citing Matter of Scimeca v. Brentwood Union Free Sch. Dist., 140 AD3d 1174, the Commissioner opined that "once adopted by a public entity," Public Officers Law §18 normally becomes the exclusive source of a public employee’s defense and indemnification rights, "unless the governing body of such public entity has provided that [the] benefits [of Public Officers Law §18] shall supplement, or be in addition to, defense or indemnification protection conferred by another enactment.”

Finding that the school board has adopted a board policy which “recognizes” the board’s duty to defend and indemnify district officers under Education Law §3811 and additionally “confers” upon district officers the benefits of Public Officers Law §18, the Commissioner concluded that Petitioner’s reliance on the argument that Education Law §3811 is "the only vehicle for the board to authorize the defense and indemnification of district officers" was misplaced. 

The Commissioner noted that Petitioner claimed that providing for the defense and indemnification of the relevant officials was improper "because the indemnified officers did not obtain certificates of good faith."  However, said the Commissioner, such certification is not required to be defended or indemnified pursuant to Public Officers Law §18. 

Accordingly, the Commissioner ruled that Petitioner has failed to prove that any aspect of the board’s December 19, 2019 vote to approve the defense and indemnification of district officers was unwarranted or improper under Public Officers Law §18.  

Additionally, with respect to Education Law §3811, the Commissioner said she "took notice" that the record indicated the officers requested that the Commissioner certify, pursuant to Education Law §3811, that they acted in good faith and thus complied with Education Law §3811 with respect to the underlying appeals.

Turning to Petitioners’ application for removal of certain school board members and school officers, the Commissioner explained that "A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education." 

In the words of the Commissioner, " ... [P]etitioner has not proven a violation of Education Law §3811 or any other act pertaining to common schools, let alone a willful violation of such laws" and denied Petitioner's application for such removals.

Noting the "multiplicity of appeals and applications" filed by Petitioner over a short period of time, the Commissioner observed that "Although [Petitioner] retains a right to commence proceedings under Education Law §310 and Education Law §306, I caution [Petitioner] that such proceedings should not be used to harass school district officers or employees.  Additionally, I remind [Petitioner] that he bears the burden of proving any alleged wrongdoing and that an appeal pursuant to Education Law §310 or an application for removal under Education Law §306 will not succeed on bald assertions alone."

* The Commissioner explained that while Petitioner timely commenced the fourth proceeding within 30 days of the board’s December 19, 2019 vote, his challenges to the three earlier votes must be dismissed as untimely.

Click here to access the full text of this decision.

 

January 16, 2021

Audits issued by the New York State Comptroller during the week ending January 15, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits of State departments and agencies and local governmental entities were issued during the week ending January 15, 2021.

Audits of State Departments and Agencies

Office for the Aging (OFA): Long-Term Care Ombudsman Program (Follow-Up) (2020-F-27) An audit issued in October 2019 found that certain system-generated office data may not have been sufficiently reliable for the agency’s use for analysis at the facility, regional program, or complaint level, which may limit its usefulness in decision making. Auditors also found that many residents of long-term care facilities lack regular access to ombudsman services, due in part to a decline in the number of volunteers combined with a lack of paid regional program staff. In a follow-up, auditors determined OFA has made significant progress in addressing the problems identified in the initial report.

Office of Children and Family Services (OCFS): Access Controls over Selected Critical Systems (Follow-Up) (2020-F-11)  An audit issued in March 2019 found that access controls over six OCFS systems containing confidential information were insufficient to prevent unnecessary or inappropriate access to those systems. In a follow-up, auditors found OCFS has made progress in correcting the problems identified in the initial report. Of the two recommendations OCFS officials implemented one and did not implement one.

Department of Civil Service: New York State Health Insurance Program: CVS Health - Accuracy of Drug Rebate Revenue Remitted to the Department of Civil Service (Follow-Up) (2020-F-23) An audit issued in January 2019 reviewed the rebate revenue generated from agreements with six drug manufacturers and found that CVS Health did not always properly invoice drug manufacturers for rebates or remit all rebate revenue it collected. As a result, New York was due $2,052,653 in rebates. In a follow-up, auditors found CVS Health has made progress in correcting the problems and collecting some of the rebates identified in the initial report.

Department of Civil Service: New York State Health Insurance Program: Empire Plan Members with Dual Family Coverage (2019-S-23) New York state does not allow two family coverages for its employees. Other public organizations that participate in the Empire Plan, including local governments and public authorities, may allow for dual family coverage, whereby each employee has family coverage. Auditors identified 696 employees and retirees of participating organizations with dual family coverage during the audit period. The total cost of premiums to the members and participating organizations for the second family coverage was $39,777,772.

Department of Health (DOH): Improper Medicaid Payments for Childhood Vaccines (Follow-Up) (2020-F-3) An audit released in December 2018 identified $32.7 million in improper Medicaid payments, which included payments for free vaccines and inaccurate payments for the administration fee. Of this amount, managed care organizations made improper payments totaling $29.8 million, and the department made improper fee-for-service payments totaling $2.9 million. In a follow-up auditors found DOH has made some progress in addressing the problems identified in the initial audit report, yet significant action is still required to prevent future Medicaid overpayments.

State Education Department (SED): The Kelberman Center Inc. – Compliance with the Reimbursable Cost Manual (2019-S-57) Kelberman is an SED-approved special education provider located in Utica. Kelberman provides preschool special education services to children with disabilities who are between three and five years of age. Kelberman is reimbursed for these services through rates set by SED. For the fiscal year ended June 30, 2017, auditors identified $23,616 in ineligible costs Kelberman reported for reimbursement. 

State Education Department (SED): Kids Unlimited, PT, OT & SLP, PLLC - Compliance with the Reimbursable Cost Manual (2020-S-33) Kids Unlimited is a New York City-based for-profit organization authorized by SED to provide special education services. The New York City Department of Education refers students to Kids Unlimited. For the three fiscal years ended June 30, 2015, auditors identified $446,835 in reported costs that did not comply with the requirements for reimbursement. 

State Education Department (SED) Mama Program LLC – Compliance with the Reimbursable Cost Manual (2019-S-73) Mama Program is a New York City-based for-profit organization authorized by SED to provide preschool special education services. The New York City Department of Education refers students to Mama Program. For the three fiscal years ended June 30, 2015, auditors identified $95,562 in reported costs that did not comply with requirements for reimbursement.

State Education Department (SED): SteppingStone Day School Inc. - Compliance with the Reimbursable Cost Manual (2020-S-23) SteppingStone is a New York City-based not-for-profit organization authorized by SED to provide special education services. The New York City Department of Education refers students to SteppingStone. For the three fiscal years ended June 30, 2018, auditors identified $562,609 in reported costs that did not comply with the requirements for reimbursement.

Department of Taxation and Finance: Personal Income Tax and Property Tax (2020-BSE08-01) Auditors found 19,049 questionable or inappropriate refunds resulting in a savings of $34.9 million and 4,331 credits resulting in a savings of over $1.1 million. In addition, auditors identified 10,142 credits totaling $4.1 million where the department potentially paid more than one credit to the same individual on multiple properties, or paid credits to multiple individuals on the same property where only one credit was due.

 

Audits of Local Governmental Entities

Village of Dering Harbor – Payroll (Suffolk County) The board did not establish adequate controls over payroll and employee benefit payments. The board also did not require formal, written employment contracts to document terms of employment; job descriptions and responsibilities; work hours; salaries or hourly rates and employee benefits. In addition, the village paid overtime payments to employees as if they were independent contractors. Auditors also found the board approved reimbursements to employees for medical benefit claims without ensuring they had adequate supporting documentation.

 

Madison County – Temporary Courthouse Lease and Renovations County officials paid more than $1.5 million to a limited liability company (LLC) to lease and renovate temporary courthouse space for a 19-month period. Auditors found county officials did not use a competitive process to lease and renovate the temporary courthouse space. Auditors determined officials paid the LLC a $500,000 deposit before any renovation work was completed or services rendered. They paid approximately $131,000 in renovation claims to the LLC without adequate supporting documentation.

 

Town of Orange – Budget Review (Schuyler County) Certain significant revenue and expenditure projections in the town’s adopted budget for the 2021 fiscal year are not reasonable. Auditors’ review took into consideration the potential impact the COVID-19 pandemic may have on the town’s finances. They determined the general and highway fund revenues are potentially overestimated by $25,000. In addition, highway fund appropriations are underestimated by at least $17,900.The general fund’s 2020 ending fund balance is estimated at $64,000, which is sufficient to balance the 2021 budget. However, additional fund balance may be needed to replace revenue shortfalls and to supplement the highway fund. The deficit in the highway fund is estimated at $27,000 as of Dec. 1, 2020. The town’s 2021 adopted budget complies with the tax cap limit.

 

Village of Remsen – Clerk-Treasurer’s Records and Reports (Oneida County) The clerk-treasurer did not maintain adequate records and reports to allow the board to properly manage village finances. Required annual financial reports were not completed or filed with the State Comptroller’s Office for any of the last four years (2015-16, 2016-17, 2017-18 and 2018-19). Fund transfers were not properly recorded and inadequate financial reports were provided to the board. In addition, the board did not annually audit the clerk-treasurer’s records and reports, as required.

 

 

 

 


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